Citation Nr: 0408273
Decision Date: 03/31/04 Archive Date: 04/02/04
DOCKET NO. 02-07 315 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to an initial compensable evaluation for
residuals of cold injury, peripheral neuropathy of the right
foot.
2. Entitlement to an initial compensable evaluation for
residuals of cold injury, peripheral neuropathy of the left
foot.
3. Whether new and material evidence has been submitted to
reopen a claim for service connection for bilateral pes
planus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. P. Simpson, Counsel
INTRODUCTION
The veteran served on active duty from November 1942 to
November 1945 and from March 1948 to March 1952.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an October 2001 rating decision of the
Phoenix, Arizona, Department of Veterans Affairs (VA)
Regional Office (RO). The RO granted service connection for
residuals of cold injury, peripheral neuropathy of the right
foot and residuals of cold injury, peripheral neuropathy of
the left foot and assigned noncompensable evaluations,
effective November 2, 1998. Additionally, the RO reopened
the claim for service connection for bilateral pes planus and
denied it on the merits.
FINDINGS OF FACT
1. Residuals of cold injury, peripheral neuropathy of the
right foot, are manifested by no more than mild incomplete
paralysis.
2. Residuals of cold injury, peripheral neuropathy of the
right foot, are manifested by no more than mild incomplete
paralysis.
3. Service connection for pes planus was denied in a June
1977 Board decision.
4. The petition to reopen the claim for service connection
for pes planus was denied in a June 1999 rating decision.
The veteran did not appeal that determination.
5. The evidence received since the June 1999 RO rating
decision does not bear directly and substantially upon the
issue of entitlement to service connection for bilateral pes
planus, and is not so significant that it must be considered
in order to fairly decide the merits of the claim.
CONCLUSIONS OF LAW
1. The criteria for an initial compensable evaluation for
residuals of cold injury, peripheral neuropathy of the right
foot, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.321, 4.124, 4.124a,
Diagnostic Code 8522 (2003).
2. The criteria for an initial compensable evaluation for
residuals of cold injury, peripheral neuropathy of the left
foot, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107; 38 C.F.R. §§ 3.321, 4.124, 4.124a, Diagnostic Code
8522.
3. The June 1977 Board decision, which denied service
connection for pes planus, is final. 38 U.S.C.A. § 7104(b)
(West 2002); 38 C.F.R. § 20.1100 (2003).
4. The June 1999 rating decisions, which denied reopening
the claim for service connection for pes planus, is final.
38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103
(2003).
5. The evidence received since the June 1999 RO rating
decision is not new and material, and the claim is not
reopened. 38 U.S.C.A. § 3.156(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA or filed before
the date of enactment and not yet final as of that date.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002); see Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991); cf. Dyment v. Principi, 287 F.3d. 1377 (Fed. Cir.
2002) (holding that only section four of the VCAA, amending
38 U.S.C. § 5107, was intended to have retroactive effect).
The final rule implementing the VCAA was published on August
29, 2001, see 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001),
and is codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2003). These regulations, likewise, apply to any
claim for benefits received by VA on or after November 9,
2000, as well as to any claim filed before that date but not
decided by the VA as of that date.
In this case, VA's duties have been fulfilled to the extent
possible. First, VA must notify the veteran of evidence and
information necessary to substantiate his claim. 38 U.S.C.A.
§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran
was notified of the information necessary to substantiate his
claims for (1) entitlement to compensable evaluations for
residuals of cold injury, peripheral neuropathy of the right
and left feet and (2) whether new and material evidence had
been received to reopen the claim for service connection for
pes planus by means of the March 2001 letter and by means of
the discussions in the October 2001 rating decision and the
May 2002 statement of the case.
As to the claims for increased evaluations, the Board notes
that the March 2001 letter to the veteran addressed the
evidence necessary to establish service connection for
residuals of cold injury. Once service connection was
granted in the October 2001 rating decision, the veteran then
appealed the evaluations assigned. The Board notes that VA's
Office of General Counsel has determined if, in response to
notice of its decision on a claim for which VA has already
given the section 5103(a) notice, VA receives a notice of
disagreement that raises a new issue (here, the veteran has
raised the new issue of entitlement to a higher evaluation
for the newly granted service-connected disabilities),
section 7105(d) requires VA to take proper action and issue a
statement of the case if the disagreement is not resolved,
but section 5103(a) does not require VA to provide notice of
the information and evidence necessary to substantiate the
newly raised issue. VA OGC Prec. Op. No. 8-2003 (Dec. 22,
2003). Thus, VA was not under an obligation to issue another
VCAA letter in connection with the veteran's claim for higher
evaluations for residuals of cold injury, peripheral
neuropathy of the right and left feet.
Regardless, the veteran was informed in both the rating
decision and the statement of the case of what evidence was
needed to be shown in order to be granted compensable
evaluations for his service-connected feet disabilities. For
example, in the October 2001 rating decision, the RO stated
that in order to warrant a compensable evaluation of
10 percent, the evidence needed to show that he had a
moderate incomplete paralysis of the right and left feet. In
the May 2002 statement of the case, the RO provided the
veteran with the provisions of the applicable Diagnostic
Code, which showed that for a 10 percent evaluation to be
granted, there would need to be moderate incomplete paralysis
of eversion of the foot. The RO also provided the veteran
with VA's definition of "incomplete paralysis." Thus, the
veteran was informed that the evidence necessary to
substantiate his claim for compensable evaluations for his
feet would be evidence showing that he had moderate
incomplete paralysis of eversion of the feet.
As to the veteran's petition to reopen the claim for service
connection for pes planus, in the July 2001 letter, the RO
informed the veteran that service connection for flat feet
had been denied previously and that in order to reopen his
claim, he needed to bring forth new and material evidence not
previously considered showing that his flat feet were
incurred in or aggravated by service. In the October 2001
rating decision, the RO reopened the veteran's claim and
determined that service connection was not warranted. It
explained that the evidence of record did not show that the
veteran's feet were made worse during service and that at
separation, his feet were normal. It also stated that the
evidence did not show that the disability was incurred in
service. Thus, the veteran was informed that the evidence
necessary to substantiate his claim was evidence showing that
the disability was incurred in or aggravated by service.
Based on the above, the Board finds that VA has no
outstanding duty to inform him that any additional
information or evidence is needed to substantiate his claims.
Second, in the same notice, VA must inform the veteran of
which information and evidence he was to provide to VA and
which information and evidence VA would attempt to obtain on
his behalf. In the March 2001 decision, the RO informed the
veteran that it had to make reasonable efforts to help him
get evidence necessary to support his claim, such as medical
records, employment records, or records from other federal
agencies. The RO stated that the veteran must provide enough
information about these records so that VA could request them
from the person or agency who had them, but noted it was
still his responsibility to make sure these records were
received by VA. The RO additionally stated, "[T]ell us
about any additional information or evidence that you want us
to try to get for you."
Third, VA must make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. §§ 3.159(c),
(d) (2003). Here, the RO had obtained the veteran's service
medical records when the veteran filed a prior compensation
claim. Service medical records were received from the
National Personnel Records Center. The veteran has not
alleged any treatment for his bilateral feet, either for
peripheral neuropathy or pes planus. In connection with the
duty to assist, the RO provided the veteran with a VA
examination as to his claims for service connection for
residuals of cold injuries to his feet.
As to the veteran's petition to reopen the claim for service
connection for pes planus, the Board finds that VA was not
under an obligation to have the veteran examined, as the
veteran has not brought forth new and material evidence to
reopen that claim. See 38 C.F.R. § 3.159(c)(4)(iii) (stating
that paragraph (c)(4) applies to a claim to reopen a finally
adjudicated claim only if new and material evidence is
presented or secured).
The United States Court of Appeals for Veteran Claims'
(Court's) decision in Pelegrini v. Principi, No. 01-944 (U.S.
Vet. App. Jan. 13, 2004) held, in part, that a VCAA notice,
as required by 38 U.S.C. § 5103(a), must be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits. This
has occurred in this case, as the letter was issued in March
2001 and the rating decision was issued in October 2001.
In the Pelegrini decision, the Court also held, in part, that
a VCAA notice consistent with 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." This new "fourth element"
of the notice requirement comes from the language of
38 C.F.R. § 3.159(b)(1).
In this case, although the March 2001 letter that was
provided to the veteran does not contain the "fourth
element" verbatim, the Board finds that the veteran was
otherwise fully notified of the need to give to VA any
evidence pertaining to his claim. Specifically, in the March
2001 letter, the RO stated, "[T]ell us about any additional
information or evidence that you want us to try to get for
you." Further, in the May 2002 statement of the case, the
RO provided him with the fourth element by including the
provisions of 38 C.F.R. § 3.159(b)(1).
All the VCAA requires is that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error). In this case, because
each of the four content requirements of a VCAA notice has
been fully satisfied, any error in not providing a single
notice to the veteran covering all content requirements is
harmless error.
II. Decision
A. Residuals of cold injury, peripheral neuropathy of the
right and left feet
An April 2001 VA examination report shows that the examiner
stated that sensation in the lower extremities was intact to
light touch, temperature, and pinprick. He stated there was
a mild proprioception present distally. He noted the veteran
was able to ambulate slowly using two canes-one in each
hand. He further noted that the veteran was using assistive
devices because he had osteoarthritis. The impression was
mild peripheral neuropathy, which the examiner stated was
likely to be related to "at least in part to cold injury
suffered during extensive cold exposure during World War
II." He added, "He is mildly impaired from this
disorder."
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4 (2003). Separate
diagnostic codes identify the various disabilities. VA has a
duty to acknowledge and consider all regulations which are
potentially applicable through the assertions and issues
raised in the record, and to explain the reasons and bases
for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991).
The veteran is contesting the disability evaluation that was
assigned following the grant of service connection for
residuals of cold injury, peripheral neuropathy of the right
and left feet. This matter therefore is to be distinguished
from one in which a claim for an increased rating of a
disability has been filed after a grant of service
connection. The Court has observed that in the latter
instance, evidence of the present level of the disability is
of primary concern, Fenderson v. West, 12 Vet. App. 119, 126
(1999) (citing Francisco v. Brown, 7 Vet. App. 55 (1994)),
and that as to the original assignment of a disability
evaluation, VA must address all evidence that was of record
from the date the filing of the claim on which service
connection was granted (or from other applicable effective
date). See Fenderson, 12 Vet. App. at 126-127. Accordingly,
the evidence pertaining to an original evaluation might
require the issuance of separate, or "staged," evaluations
of the disability based on the facts shown to exist during
the separate periods of time. Id.
Under the rating criteria currently in effect for evaluation
of residuals of cold injuries, when there are cold injury
residuals with pain, numbness, cold sensitivity, or
arthralgia, a 10 percent disability evaluation is warranted.
38 C.F.R. § 4.104 Diagnostic Code 7122 (2003). When there
are cold injury residuals with pain, numbness, cold
sensitivity, or arthralgia plus tissue loss, nail
abnormalities, color changes, locally impaired sensation,
hyperhidrosis, or x-ray abnormalities (osteoporosis,
subarticular punched out lesions, or osteoarthritis) of
affected parts, a 20 percent evaluation is warranted. Id.
When there are cold injury residuals with pain, numbness,
cold sensitivity, or arthralgia plus two or more of the
following: tissue loss, nail abnormalities, color changes,
locally impaired sensation, hyperhidrosis, x-ray
abnormalities (osteoporosis, subarticular punched out
lesions, or osteoarthritis) of affected parts, a 30 percent
evaluation is warranted. Id.
Separately evaluate amputations of fingers or toes, and
complications such as squamous cell carcinoma at the site of
a cold injury scar or peripheral neuropathy, under other
diagnostic codes. Id. at Note (1). Separately evaluate
other disabilities that have been diagnosed as the residual
effects of cold injury, such as Raynaud's phenomenon, muscle
atrophy, etc., unless they are used to support an evaluation
under Diagnostic Code 7122. Id. When evaluating residuals
of a cold injury, each part affected is to be rated
separately. Id. at Note (2).
The examiner has attributed the residuals of the cold injury
to the diagnosis of peripheral neuropathy of the feet, and
the RO has rated the disability based upon those symptoms,
which is in accordance with 38 C.F.R. § 4.104, Diagnostic
Code 7122 at Note (1). Diagnostic Code 8522 addresses the
superficial peroneal nerve, which relates to eversion of the
foot. Under Diagnostic Code 8522, a zero percent evaluation
may be assigned for mild incomplete paralysis of the
musculocutaneous nerve. See 38 C.F.R. § 4.124a, Diagnostic
Code 8522. A 10 percent evaluation requires moderate
incomplete paralysis. Id. A 20 percent evaluation requires
severe incomplete paralysis. Id. A 30 percent rating
requires complete paralysis with eversion of the foot
weakened. Id.
The term "incomplete paralysis," with this and other
peripheral nerve injuries, indicates a degree of lost or
impaired function substantially less than the type picture
for complete paralysis given with each nerve, whether due to
varied level of the nerve lesion or to partial regeneration.
38 C.F.R. § 4.124a, Note preceding Diagnostic Code 8515.
When the involvement is wholly sensory, the rating should be
for the mild, or at most, the moderate degree. Id.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The Board has carefully reviewed the evidence of record and
finds that the preponderance of the evidence is against the
grant of 10 percent evaluations for either the right or the
left foot. In the April 2001 VA examination report, the
examiner determined that the veteran's residuals of a cold
injury to his feet were limited to peripheral neuropathy of
the feet. He did not report any pain or numbness, and
neither did the veteran. In the submissions by the veteran,
he has not asserted symptoms in his feet that fall under the
10 percent evaluation for residuals of a cold injury to
either foot. See 38 C.F.R. § 4.104 Diagnostic Code 7122.
Evaluating the veteran's feet under Diagnostic Code 8522, no
more than a noncompensable evaluation is warranted for each
foot. In the April 2001 examination report, the examiner
stated that the veteran had mild peripheral neuropathy in
both feet. He reiterated that the veteran was only mildly
impaired as a result of the peripheral neuropathy. Such
findings establish that the veteran warrants no more than a
noncompensable evaluation under Diagnostic Code 8522, as that
contemplates mild incomplete paralysis.
The Board must consider whether the next higher evaluation,
here, 10 percent, is warranted and finds that the
preponderance of the evidence is against a finding that the
veteran has moderate incomplete paralysis. There is a
medical opinion that the veteran's peripheral neuropathy in
his feet is only mildly disabling. This opinion has not been
refuted by any competent evidence. Thus, the Board finds
that there is no basis to grant a higher evaluation under
Diagnostic Code 8522. Additionally, the Board finds that the
preponderance of the evidence is against the grant of a
10 percent evaluation under Diagnostic Code 7122, as that
contemplates that the veteran has arthralgia or other pain,
numbness, or cold sensitivity in his feet, which has not been
alleged either by the veteran or reported in the April 2001
examination report. The veteran has pain in his feet, which
has been attributed to his pes planus, but such pain has not
been attributed to the peripheral neuropathy. Without a
medical opinion attributing the veteran's pain in his feet to
the peripheral neuropathy, the Board may not make such a
determination. The preponderance of the evidence is against
a finding that the service-connected peripheral neuropathy of
the right and left feet warrant any more than noncompensable
evaluations. See 38 C.F.R. § 4.124a, Diagnostic Code 8522.
The Board notes that the veteran's representative has
asserted that the application of DeLuca v Brown, 8 Vet.
App. 202 (1995) would provide a basis to grant a compensable
evaluation. However, the holding in DeLuca addresses
disabilities of the musculoskeletal system. The veteran's
service-connected disabilities are disabilities of the
peripheral nerves, and thus, DeLuca would not be applicable
in the veteran's claims for increased evaluations.
The veteran is competent to report his symptoms; however, to
the extent that he has asserted he warrants higher
evaluations, the medical findings do not support his
assertions for a higher evaluation for the reasons stated
above. Again, the clinical findings reported in the April
2001 VA examination report established that the peripheral
neuropathy of the feet was only mildly disabling. For the
above reasons, the Board find that the preponderance of the
evidence is against the veteran's claim that he warrants
compensable evaluations for his service-connected
disabilities, and there is no doubt to be resolved. See
Gilbert, 1 Vet. App. at 55.
Accordingly, in view of the denial of entitlement to
increased evaluations, the Board finds no basis upon which to
predicate assignment of "staged" ratings pursuant to
Fenderson, supra.
The Board notes it does not find that consideration of
extraschedular ratings under the provisions of 38 C.F.R. §
3.321(b)(1) (2003) is in order. The RO addressed this issue
in its May 2002 statement of the case. The Schedule for
Rating Disabilities will be used for evaluating the degree of
disabilities in claims for disability compensation. The
provisions contained in the rating schedule will represent as
far as can practicably be determined, the average impairment
in earning capacity in civil occupations resulting from
disability. Id. In the exceptional case where the schedular
evaluations are found to be inadequate, the Under Secretary
for Benefits or the Director, Compensation and Pension
Service, upon field station submission, is authorized to
approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability. The governing norm in these
exceptional cases is: A finding that the case presents such
an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular schedular standards. Id.
The Board emphasizes that the percentage ratings under the
Schedule are representative of the average impairment in
earning capacity resulting from diseases and injuries. Under
38 C.F.R. § 4.1 (2003), it states that "[g]enerally, the
degrees of disability specified are considered adequate to
compensate for considerable loss of working time from
exacerbations or illnesses proportionate to the severity of
the several grades of disability."
Thus, with this in mind, the Board finds that the veteran's
symptoms that warrant the noncompensable evaluations for
residuals of cold injury, peripheral neuropathy of the right
foot and residuals of cold injury, peripheral neuropathy of
the right foot are clearly contemplated in the Schedule and
that the veteran's service-connected disabilities are not
exceptional nor unusual such as to preclude the use of the
regular rating criteria. Referral in this instance is
therefore not warranted because the evidence does not
indicate that the service-connected disabilities have
rendered the veteran's disability picture unusual or
exceptional, markedly interfered with employment, or required
frequent inpatient care as to render impractical the
application of regular schedular standards.
In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court
clarified that it did not read the regulation as precluding
the Board from affirming an RO conclusion that a claim does
not meet the criteria for submission pursuant to 38 C.F.R.
§ 3.321(b)(1), or from reaching such conclusion on its own.
See also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not
warranted in this case.
B. New and material evidence
Pursuant to 38 U.S.C.A. §§ 7104(b), 7105(c), a decision by
both the Board and the RO may not thereafter be reopened and
allowed and a claim based upon the same factual basis may not
be considered. The exception to this rule is described under
38 U.S.C.A. § 5108, which provides that "[i]f new and
material evidence is presented or secured with respect to a
claim which has been disallowed, the [Board] shall reopen the
claim and review the former disposition of the claim."
Therefore, once a rating decision has been issued, absent the
submission of new and material evidence, the claim cannot be
reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7104(b),
7105(c); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir.
1996).
"New and material evidence" means evidence not previously
submitted to agency decision makers, which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative or redundant, and which by itself
or in connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001);
see Fossie v. West, 12 Vet. App. 1, 4 (1998); Hodge v. West,
155 F.3d 1356 (Fed. Cir. 1998).
New evidence is considered to be material where such evidence
provides a more complete picture of the circumstances
surrounding the origin of the veteran's injury or disability,
even where it will not eventually convince the Board to alter
its decision. See Hodge, 155 F.3d at 1363. When determining
whether the veteran has submitted new and material evidence
to reopen a claim, consideration must be given to all the
evidence since the last final denial of the claim. Evans v.
Brown, 9 Vet. App. 273 (1996). In Evans, the Court indicated
that the newly presented evidence need not be probative of
all the elements required to award the claim, but need only
tend to prove each element that was a specified basis for the
last disallowance. Id. at 284.
The Board notes that the legal standard of what constitutes
"new and material" evidence was recently amended. This
amendment is inapplicable in the instant case as the
amendment applies prospectively to claims filed on or after
August 29, 2001, and the veteran's claim was filed in January
2001. See 66 Fed. Reg. 45,620, 45,630 (August 29, 2001)
(codified at 38 C.F.R. § 3.156(a) (2003)).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110 (West 2002). Service connection may be
granted for any disease diagnosed after service when all the
evidence establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (2003).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The Board notes that the record reflects that the RO found
that new and material evidence had been presented to reopen
the claim for service connection for bilateral pes planus.
The issue of whether new and material evidence has been
submitted to reopen a previously disallowed claim is a
material issue. Before the Board may reopen such a claim,
the Board must find that new and material evidence has been
presented. See 38 U.S.C.A. § 5108; Barnett, 83 F. 3d 1380.
The Board does not agree with the RO's finding that the
veteran has submitted new and material evidence and will
address its reasons and bases for this determination below.
At the time of the June 1977 Board decision, the evidence of
record consisted of service medical records, VA examination
reports, and the veteran's contentions that service
connection for bilateral pes planus was warranted. In the
Board decision, it noted that the veteran had two periods of
service and complained of feet pain during his first period
of service and was treated with arch supports during his
second period of service. Additionally, the Board noted that
a 1953 VA examination report showed that the veteran's pes
planus had remained static. In that examination report, the
examiner stated the veteran's feet were flattened and that he
had a slight inner bulge. He added that the veteran's feet
were congenitally flat. He stated the veteran could jump up
and down on his toes and that his feet were not painful on
manipulation. The Board concluded that flat feet were noted
during both periods of service, which were essentially
asymptomatic and, in the absence of disease or injury of the
feet, were found to be static foot disabilities rather than
acquired disorders. That decision is final. 38 U.S.C.A.
§ 7104(b); 38 C.F.R. § 20.1100.
At the time of the June 1999 rating decision, the additional
evidence that the veteran had submitted were two medical
records from a private physician. A February 1998 treatment
report shows that the veteran was seen with complaints of
fatigue in his arches, arch pain, heel pain, and difficulty
walking. Physical examination revealed a collapsed flat foot
with loss of medial longitudinal arch. The examiner stated
there was pain throughout the plantar fascia. He recommended
arch supports. In a February 1998 addendum, the private
physician stated that the veteran had a flat foot condition,
which was congenital and longstanding. In the June 1999
rating decision, the RO stated that the additional evidence
submitted essentially duplicated evidence which was
previously of record at the time of the June 1977 Board
decision and thus did not constitute new and material
evidence to reopen the claim. The veteran did not appeal the
rating decision, and it became final one year later.
38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.
The additional evidence received since the June 1999 rating
decision are copies of service medical records, the April
2001 VA examination report, and the veteran's contentions
that he warrants service connection for bilateral pes planus.
After having carefully reviewed the evidence of record, the
Board finds that the veteran has not presented evidence since
the June 1999 rating decision, which is so significant that
it must be considered in order to fairly decide the merits of
the claim for service connection for bilateral pes planus.
See 38 C.F.R. § 3.156(a). In the June 1977 Board decision,
it acknowledged that the veteran had been seen during both
periods of service for flat feet. At that time, the veteran
had been diagnosed with congenital pes planus in the 1953 VA
examination report. At the time of the June 1999 rating
decision, the additional evidence merely reaffirmed that the
veteran had congenital pes planus. Thus, at the time of the
last denial, the evidence of record showed that the veteran
complained of feet pain during both periods of service and
had post service diagnoses of bilateral congenital pes
planus, but there was no competent evidence of a nexus
between the post service diagnosis and service.
The additional evidence associated with the veteran's current
petition to reopen the claim does not provide any basis to
reopen the claim. The April 2001 examination report further
confirms a fact that was already of record previously-that
the veteran has bilateral congenital pes planus. The service
medical records were already of record at the time of the
June 1977 Board decision and the June 1999 rating decision.
Thus, these additional records associated with the claims
file are cumulative and redundant of that which was of record
at the time of the June 1999 rating decision and cannot
constitute new and material evidence to reopen the claim for
service connection for bilateral pes planus. See id. This
additional evidence does not cure the defect of a lack of
competent evidence of a nexus between the post service
diagnosis of congenital pes planus and service.
While the veteran asserts that bilateral pes planus either
was incurred in or aggravated by service, he made those same
arguments at the times of the prior Board and RO rating
decisions and would not establish a basis to reopen the
claim. See id.; see also Reid v. Derwinski, 2 Vet. App. 312
(1992). Specifically, they are also cumulative and redundant
of that which was of record at the time of the June 1999
determination.
Therefore, based upon the above reasons, the Board finds that
the evidence associated with the claims file since the June
1999 rating decision is not so significant that it must be
considered in order to fairly decide the merits of the claim
for service connection for bilateral pes planus and, thus,
cannot constitute new and material evidence. See 38 C.F.R.
§ 3.156(a). Accordingly, the petition to reopen such claim
is denied.
ORDER
A compensable evaluation for residuals of cold injury,
peripheral neuropathy of the right foot is denied.
A compensable evaluation for residuals of cold injury,
peripheral neuropathy of the right foot is denied.
The petition to reopen the claim for service connection for
bilateral pes planus is denied.
__________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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